Clarifying Departmentalism: How the Framers' Vision of Judicial and Presidential Review Makes the Case for Deductive Judicial Supremacy

Article excerpt

TABLE OF CONTENTS
INTRODUCTION
I. THE PRAGMATIC REASONING BEHIND THE
FRAMERS' VISION OF CONSTITUTIONAL REVIEW
II. JUDICIAL REVIEW
A. State Judicial Review
1. The Foundations of State Judicial Review
2. The Spread of State Judicial Review
B. National Judicial Review
III. PRESIDENTIAL REVIEW
A. The Basis for Presidential Review
1. Opposition to Excessive Executive Power
2. Support for a Moderate Review Power
B. The Practicality of Presidential Review
C. The Means of Presidential Review
1. The Qualified Veto
2. The Pardon Power
3. Selective Execution
IV. AMERICAN DEPARTMENTAL THEORY OF
GOVERNMENT AND DEDUCTIVE JUDICIAL SUPREMACY
A. The Reasoning Behind the American
Departmental Theory of Government
B. Deductive Judicial Supremacy Generally Defined
V. A FRAMEWORK UNDER WHICH DEDUCTIVE JUDICIAL
SUPREMACY INFORMS DEPARTMENTALISM IS
MOST CONSISTENT WITH THE FRAMERS' VISION OF
CONSTITUTIONAL REVIEW
A. Justice Jackson's Proposed
Constitutional Framework
B. Recalibrating Justice Jackson's Framework To
Describe the Framers' Vision of
Constitutional Review: Departmentalism Within a
Deductive Judicial Supremacy Context
1. Step One: Determining Which Branch Should
Possess the Greatest Interpretive Power
2. Step Two: Applying the Framework
CONCLUSION

"After the Destruction of the King in Great Britain, a more pure and unmixed tyranny sprang up in the parliament than had been exercised by the monarch." -James Wilson (1)

"[I]f the whole legislature ... should attempt to overleap the bounds, prescribed to them by the people, I, in administering the public justice of the country, will ... [point] to the constitution, [and] will say ... here is the limit of your authority; and hither, shall you go, but no further."

-George Wythe, Commonwealth v. Caton (2)

INTRODUCTION

John Adams once defined a "republic" as "a government of laws and not of men." (3) Even Adams would acknowledge, however, that laws must have their limits, and that men, as the makers and interpreters of laws, must necessarily define what those limits are. (4) Indeed, in the American legal system, the idea that men can invalidate legislation that directly contradicts the Constitution has become an almost axiomatic constitutional directive. Not only does the Constitution itself implicitly support this position, (5) but the nullification of unconstitutional laws is also consistent with America's early political climate, which emphasized contractual constraints upon government authority (6) and the necessity of limited government power. (7)

This anxiety toward overzealous government, as well as the legislative power that such a government would entail, is ubiquitously manifest within the Founding documents. In Federalist No. 1, for example, Alexander Hamilton cautioned readers against one of the proposed Constitution's main criticisms: that the national government would expand its powers at the expense of individual and state liberty. (8) "An enlightened zeal for the energy and efficiency of government," he wrote, "will be stigmatized as the offspring of a temper fond of despotic power and hostile to the principles of liberty." (9) Madison echoed Hamilton's reassurances, reminding the Constitution's skeptics that the Framers had created "neither [a] wholly national nor [a] wholly federal" (10) political system that would prove incapable of abusing its delineated constitutional authority. (11) This desire to prevent the national government from perverting its inherently limited capabilities continued even after the Constitution's ratification. In Washington's administration, for instance, Thomas Jefferson opposed Congress's ability to pass a bill authorizing the creation of a national bank. …